EXPLANATORY STATEMENT
Social Security (Personal Care Support) (NSW Government Individual Budgets: Direct Payments) Determination 2013
The Social Security (Personal Care Support) (NSW Government Individual Budgets: Direct Payments) Determination 2013 (the Determination) provides that the New South Wales Government’s Individual Budgets: Direct Payments scheme is an approved scheme under section 35A of the Social Security Act 1991 (the Act).
Background
Under the social security law, income includes any income amount earned, derived or received for a person’s own use or benefit. However, the social security law specifically excludes some amounts from being recognised as income for the purposes of the income test. Paragraph 8(8)(zi) of the Act provides that a payment towards the cost of personal care support services for the person, being a payment made under a scheme approved under section 35A, is not income for the purposes of the Act.
Section 35A of the Act allows the Minister to determine that a scheme for the provision of personal care support is an approved scheme for the purposes of the Act.
The scheme known as Individual Budgets: Direct Payments has been established by the New South Wales Government Department of Family and Community Services to provide payments directly to a person with a disability, or their nominee, to give maximum choice and control over how a person’s funding is spent, the supports they receive and who delivers these supports.
To receive a direct payment a person must enter into a Direct Payment Agreement (DPA) with the Department of Family and Community Services. The DPA includes an Individual Plan that identifies the outcomes the person wants to achieve and the supports they need to purchase to achieve these outcomes. It also includes an Individual Budget that sets out how much funding the person will receive. Funding must only be used to purchase supports that meet the support needs or outcomes identified in their Individual Plan.
These payments are not intended as income, or to be used as an income source for the person. It is expected that payments to individuals would commence from 1 January 2014.
Purpose
The purpose of the Determination is to determine that the New South Wales Government’s Individual Budgets: Direct Payments scheme is an approved personal care support scheme for the purposes of the Act.
A person for whom a payment is made under the scheme may also receive a social security payment. The effect of this Determination is that the person will not have the payment received taken into account for the purposes of the income test under the social security law to the extent that the payment is for the cost of personal care support services for the person. This would ensure that the receipt of payments for personal care support services under the scheme would not have the unintended effect of reducing a person’s entitlement to any social security payment because of the operation of the income test.
This Determination has effect in relation to social security payments under the Act. It also has effect in relation to means tested payments under the Veterans’ Entitlements Act 1986. This is because a payment towards the cost of personal care support services for the person that is made under a scheme approved under section 35A of the Act are excluded from the concept of income under paragraph 5H(8)(ya) of the Veterans’ Entitlements Act 1986.
Explanation of the Provisions
Section 1 states the name of the Determination.
Section 2 provides that the Determination commences on the day after registration.
Section 3 provides that the scheme Individual Budgets: Direct Payments, being a scheme of that name established by the New South Wales Government Department of Family and Community Services, is an approved scheme for the purposes of the Act.
Consultation
This Determination was made in response to a request from the New South Wales Government Department of Family and Community Services.
Public consultation was considered to be unnecessary as this determination is purely beneficial in character.
Regulatory Impact Analysis
The Determination is not regulatory in nature, will not impact on business activity and will have no, or minimal, compliance costs or competition impact.
Statement of Compatibility with Human Rights
Prepared in accordance with Part 3 of the
Human Rights (Parliamentary Scrutiny) Act 2011
This Legislative Instrument is the Social Security (Personal Care Support) (NSW Government Individual Budgets: Direct Payments) Determination 2013
The Social Security (Personal Care Support) (NSW Government Individual Budgets: Direct Payments) Determination 2013 (the Determination) is compatible with the human rights and freedoms recognised or declared in the international instruments listed in section 3 of the Human Rights (Parliamentary Scrutiny) Act 2011.
Overview of the Legislative Instrument
The Determination is made under section 35A of the Social Security Act 1991 (the Act) and determines that the New South Wales Government’s Individual Budgets: Direct Payments is an approved personal care support scheme for the purposes of the Act, thereby exempting payments received by a person under the scheme for personal care support services from the social security income test.
The New South Wales Government’s Individual Budgets: Direct Payments scheme has been established by the New South Wales Government Department of Family and Community Services to provide payments directly to a person with a disability, to give the person maximum choice and control over how a person’s funding is spent, the supports they receive and who delivers these supports. Payments to individuals are expected to commence from 1 January 2014.
The Determination ensures that people receiving funding under the Individual Budgets: Direct Payments for the cost of personal care support services will not have this funding assessed as income for the purposes of social security law or veterans’ entitlements law.
Human rights implications
The Determination engages the human right: Right to social security.
The right to social security
Section 35A of the Act allows the Minister for Social Services to determine that when a person receives funding provided by a personal care support scheme, this funding is exempt from the income test in relation to social security payments. The exemption also flows through to means tested payments under the Veterans’ Entitlements Act 1986. The determination is therefore beneficial to persons who receive income support.
Conclusion
The Determination under section 35A of the Act ensures that individuals receiving funding for personal care support services from the approved personal care support scheme do not have this funding assessed for income test purposes. The Determination supports their human right to social security and is compatible with the applicable rights and freedoms.
The Hon Kevin Andrews MP, Minister for Social Services